2.Challenge
in this appeal is to the judgment of a learned Single Judge of the Karnataka
High Court dismissing the appeal filed by the appellants.

Both the appellants
faced trial for alleged commission of offences punishable under Sections 302,
201 read with Section 34 of the Indian Penal Code, 1860(in short the `IPC').
Learned Third Additional Sessions judge D.K. at Mangalore in Sessions Case No.
94 of 1995 held that the accused persons were to be convicted in terms of
Section 304 Part II and Section 201 read with Section 34 IPC, so far as
appellant No.1 is concerned and Section 201 read with Section 34 IPC so far as
appellant No.2 is concerned.

3.Background
facts giving rise to the trial are as follows:

M.T. George
(hereinafter referred to as the `deceased') was addicted to alcohol and used to
assault A1. Al had become desperate with the bad conduct of the deceased. On
6.3.1995 at 9.30 p.m. the deceased picked up quarrel, assaulted A1 and tried to
pull her sari. A2 and A3 were present.

Because of the
ghastly conduct of the deceased, A1 dealt a blow with the iron rod on the head
of the deceased which resulted in his death. The accused persons stealthily
buried the body in the backyard of the house. A1 in the early morning of
7.3.1995 informed school teacher (PW 1) of the village that the deceased
quarreled with her and tried to pull her sari.

Therefore, she hit
the deceased on his head and that he was unwell. PW1 heard the fact from A1 and
went away. In the evening PW1 met A2 and made enquiries about the health of the
deceased. A2 informed that his father was dead and that they buried the body in
the backyard. PW1 suspected foul play and lodged FIR before the police. At the
instance of A1 and A2 the dead body buried in the backyard was exhumed on
8.3.1995 in the presence of T.E.M.

The prosecution
relied on the extra judicial confession made by A1 before PW 1 and the
circumstances of recovery of the dead body at the instance of both the accused
persons proved their guilt. An appeal was preferred before the High Court which
by the impugned judgment held that actual conviction should have been in terms
of Section 304 Part I IPC. But in the absence of challenge by the State there
was no scope for interference.

The evidence of PW 1
was found to be credible. The appeal was dismissed.

4.Though
in support of the appeal learned counsel for the appellant submitted that the
High Court ought to have accepted the stand that PW1's evidence is not without
blemish, the same is clearly without substance. The evidence of PW 1 has been
analysed by both the trial court and the High Court and have been found to be
cogent and credible. The alternative plea of learned counsel for the appellant
was that neither the trial court nor the High Court considered the effect of
provisions of Section 360 of the Code of Criminal Procedure, 1973 (in short the
`Cr.P.C.').

5.Learned
counsel for the respondent-State on the other hand supported the judgment.

6.It
appears that the trial court convicted A1 under Section 304 Part II IPC and
Section 201 read with Section 34 IPC and sentenced him to undergo rigorous
imprisonment for four years and one year respectively. So far as A2 is concerned
he was convicted under Section 201 read with Section 34 and was sentenced to
undergo imprisonment for one year. The other co-accused was convicted by the
juvenile court.

7.Section
360 Cr.P.C. reads as follows:

"360. Order to
release on probation of good conduct or after admonition :--(1) When any person
not under twenty-one years of age is convicted of an offence punishable with
fine only or with imprisonment for a term of seven years or less, or when any
person under twenty-one years of age or any woman is convicted of an offence
not punishable with death or imprisonment for life, and no previous conviction
is proved against the offender, if it appears to the Court before which he is
convicted, regard being had to the age, Character or antecedents of the
offender, and to the circumstances in which the offence was committed, that it
is expedient that the offender should be released on probation of good conduct,
the Court may, instead of sentencing him at once to any punishment, direct that
he be released on his entering into a bond, with or without sureties, to appear
and receive sentence when called upon during such period (not exceeding three
years) as the Court may direct, and in the meantime to keep the peace and be of
good behaviour:

Provided that, where
any first offender is convicted by a Magistrate of the second class not
specially empowered by the High Court, and the Magistrate is of opinion that
the powers conferred by this section should be exercised, he shall record his
opinion to that effect, and submit the proceedings to a Magistrate of the first
class, forwarding the accused to, or taking bail for his appearance before such
Magistrate, who shall dispose of the case in the manner provided by sub-section
(2).

(2) Where proceedings
are submitted to a Magistrate of the first class as provided by sub-section
(1), such Magistrate may thereupon pass such sentence or make such order as he
might have passed or made if the case had originally been heard by him, and, if
he thinks further inquiry or additional evidence on any point to be necessary,
he may make such inquiry or take such evidence himself or direct such inquiry
or evidence to be made or taken.

(3) In any case in
which a person is convicted of theft, theft in a building, dishonest misappropriation,
cheating or any offence under the Indian Penal Code (45 of 1860), punishable
with not more than two years, imprisonment or any offence punishable with fine
only and no previous conviction is proved against him, the Court before which
he is so convicted may, if it thinks fit, having regard to the age, character,
antecedents or physical or mental condition of the offender and to the trivial
nature of the offence or any extenuating circumstances under which the offence
was committed, instead of sentencing him to any punishment, release him after
due admonition.

(4) An order under
this section may be made by any Appellate Court or by the High Court or Court
of Session when exercising its powers of revision.

(5) When an order has
been made under this section in respect of any offender, the High Court or
Court of Session may, on appeal when there is a right of appeal to such Court,
or when exercising its powers of revision, set aside such order, and in lieu,
thereof pass sentence on such offender according to law:

Provided that the
High Court or Court of Session shall not under this sub-section inflict a
greater punishment than might have been inflicted by the Court by which the
offender was convicted.

(6) The provisions of
Sections 121, 124 and 373 shall, so far as may be, apply in the case of
sureties offered in pursuance of the provisions of this section.

(7) The Court before
directing the release of an offender under sub- section (1), shall be satisfied
that an offender or his surety (if any) has a fixed place of abode or regular
occupation in the place for which the Court acts or in which the offender is likely
to live during the period named for the observance of the conditions.

(8) If the Court
which convicted the offender, or a Court which could have dealt with the
offender in respect of his original offence, is satisfied that the offender has
failed to observe any of the conditions of his recognisance, it may issue a
warrant for his apprehension.

(9) An offender, when
apprehended on any such warrant shall be brought forthwith before the Court
issuing warrant, and such Court may either remand him in custody until the case
is heard or admit him to bail with a sufficient surety conditioned on his
appearing for sentence and Court may, after hearing the case, pass sentence.

(10) Nothing in this
section shall affect the provisions of the Probation of Offenders Act, 1958 (20
of 1951), the Children Act, 1960 (60 of 1960) or any other law for the time
being in force for the treatment, training or rehabilitation of youthful
offenders."

8.It
is rightly contended by the learned counsel for the appellant that the effect,
relevance and applicability of Section 360 Cr.P.C. have not been considered by
the courts below.

9.In
Chandreshwar Sharma v. State of Bihar [2000(9) SCC 245] it was observed as
follows:

"The appellant
herein was convicted under Sections 379 and 411 IPC and was sentenced to
rigorous imprisonment for one year as 3.5 kg of non-ferrous metal was recovered
from his possession. On an appeal being filed, the conviction under Section 379
was affirmed. The appellant carried the matter in revision, but the revision
also stood dismissed. All along the case of the appellant was that the recovery
from the tiffin carrier kept on the cycle would not tantamount to recovery from
the possession of the appellant, and this contention has been negatived and rightly
so. When the matter was listed before this Court, a limited notice was issued
as to why the provisions of Section 360 of the Criminal Procedure Code should
not be made applicable. Pursuant to the said notice, Mr. Singh, the learned
Standing Counsel for the State of Bihar has entered appearance.

From the perusal of
the judgment of the learned Magistrate as well as the court of appeal, and that
of the High Court, it transpires that none of the forums below had considered
the question of applicability of Section 360 of the Code of Criminal Procedure.
Section 361 and Section 360 of the Code on being read together would indicate
that in any case where the court could have dealt with an accused under Section
360 of the Code, and yet does not want to grant the benefit of the said
provision then it shall record in its judgment specific reasons for not having
done so. This has apparently not been done, inasmuch as the Court overlooked
the provisions of Sections 360 and 361 of the Code of Criminal Procedure. As such,
the mandatory duty cast on the Magistrate has not been performed.

Looking to the facts
and circumstances of the present case, we see no reason not to apply the
provisions of Section 360 of the Code of Criminal Procedure. We accordingly,
while maintaining the conviction of the appellant, direct that he will be dealt
with 7 under Section 360, and as such, we direct that the appellant be
released on probation of good conduct instead of sentencing him, and he should
enter into a bond with one surety to appear and receive the sentence when
called upon during the period of one year for the purpose in question. The bond
for a year shall be executed before the learned Chief Judicial Magistrate,
Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

10.Therefore,
while upholding the conviction, we remit the matter to the trial court for
limited purpose for deciding whether the benefit under Section 360 Cr.P.C. can
be extended to the appellants.

11.In
view of the above the appeal is allowed to the extent indicated.